Before SPARKS and KERNER, Circuit Judges, and BRIGGLE, District Judge.
This is an appeal from a judgment of the District Court after a jury found the defendants, Silas Elbert Pike and Ernest C. Pike, guilty of using the United States mails in a scheme to defraud in violation of Section 338, Title 18 United States Code Annotated, Sec. 215, Cr.Code. The trial court imposed a sentence of five years imprisonment and a fine of $1,000 on each of seven counts, sentences of imprisonment to run concurrently.
The scheme employed by the defendants originated and was operated from the city of St. Charles, Illinois. Using the trade name of "Sunnyside Gardens," the defendants conducted an extensive solicitation of sums of money by mailing millions of postal cards addressed to persons known to be flower lovers and interested in the cultivation of gardens. A method employed by the defendants was the sending of the following postal card:
"Dear Friend: As you are a flower lover we have a wonderful Free Offer to send you. Just cut your name and address from this card and send it to us with 8 postal cards each addressed to a flower lover, together with 2 dimes, and we will mail you a $1.00 Surprise Collection to get acquainted. Answering within 10 days gives you an opportunity to receive a Premium of 6 lovely Handkerchiefs and 25 beautiful Flowering bulbs together with our Catalog. Thanks to a friend who made it possible for you to have this information.
"Sunnyside Gardens, Box 215, St. Charles, Illinois.
"P.S. Answering within a few days will include 2 lovely house plants for promptness."
If a recipient complied with the instruction printed on the postal card, he would cut out of such postal card the part which bore his name on one side and the address of the Appellants on the reverse side, and send this by mail to appellants, with the sum of twenty cents and eight other blank postal cards stamped and addressed to his friends who were also interested in flowers. Immediately upon receipt at the defendants' building in St. Charles, these postal cards were placed in a mimeograph machine and the identical or a similar offer was printed on the back of each, and they were placed in the United States mails. Thereafter, four or five packets of seeds of various types were sent to some of those who had sent in their money and addressed postal cards; others received nothing at all. Recipients testified to having answered promptly but failed to receive the "premiums" indicated on the card.
The evidence indicated that the results obtained from planting the seeds were in many cases negative. Sometimes a seed produced a plant but usually it withered and died, although the recipients of the seeds were usually familiar with the cultivation of plant life, and were qualified to secure favorable results from the seeds if the same were reasonably obtainable.
In 1944 defendants sent with the seeds a slip of paper which read, as follows:
"Dear Customer: Due to war conditions the balance of your order will be sent later.
"You will positively receive it in due time."
The envelope containing the seeds had the following printed ...